the estate, are void. In any of which cases, if they be conditions *157] subsequent, *that is, to be performed after the estate is vested, the estate shall become absolute in the tenant. (20) As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in twenty-four hours; or unless he marries with Jane S. by such a day, (within which time the woman dies, or the feoffor marries her himself;) or unless he kills another; or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant. (t) But if the condition be precedent, or to be performed (21) before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed. (u)

There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are,

III. Estates held in vadio, in gage, or pledge; which are of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.(22)

Vivum vadium, or living pledge, is when a man borrows a sum (suppose 2007.) of another; and grants him an estate, as of 20l. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void as soon as such sum is raised. And in this case the land or pledge is said to be living; it subsists, and survives the debt; and immediately on the discharge of that, results back to the borrower. (w) But mortuum vadium, a dead pledge, or mortgage, (which is much more com

mon than the other,) is where a man borrows of another a specific *158] sum (e. g. 200l.) *and grants him an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 200l. on a certain day mentioned in the deed, that then the mortgagor may re-enter (t) Co. Litt. 206. (w) Ibid. 205. (u) Co. Litt. 206.

(20) When a subsequent act of legislature makes the continued performance of a condition contained in a grant unlawful, as an act forbidding the burial of the dead in a certain place, the title becomes absolutely vested in the grantee. Scoville v. McMahon, 62 Conn. 390 (1892). I Lomax Dig. 273. Ruble v. Turner, 2 Va. 44 (1808). Henning and Munford. Delay v. Chapman, 3 Oregon, 463 (1869). The Charles Baumbach Co. v. Gessler, 79 Wis. 567 (1891). Proprietor of Church v. Grant, 69 Mass. 156 (1855). Ricketts v. R. R. Co., 91 Ky. 221, 226 (1891). Locke v. Barbour, 62 Ind. 586 (1878). Davis v. Gray, 16 Wallace, 230 U. S. (1872). Delay v. Chapman, 3 Oregon, 463 (1869). Vanderslice v. Hanks, 3 Cal. 41 (1852) (Hepburn). Norris v. Moody, 84 Cal. 146 (1890.)

(21) Tyler on Ejectment, 255.

(22) Goodeve's Mod. Law of R. P. (3 ed.) 185. There was besides another class of pledges of land, called Welsh mortgages, where the mortgagee entered and occupied and took the rents as a substitute for interest upon the sum loaned, and held until the estate was redeemed by the mortgagor's paying the principal. The mortgagee could neither enforce the repayment of the debt nor the redemption of the estate, nor could he foreclose it. This form of pledge, however, as well as the vivum vadium, has gone out of use. Washburn on Real Prop. vol. 2, 5 ed. p. 39.

Somewhat similar to the vivum vadium, is a contract in use in Louisiana known as the Anticresis. It is a pledge of immovable property, possessing some of the features of a mortgage; it is a conveyance of real estate with a counter letter or stipulation by the grantee, to reconvey on payment of the money borrowed; it gives the lender, the grantee, possession of the premises with the income or fruits arising from the property; out of the income the grantee is to pay the taxes and repairs and interest, and to apply the balance on the principal. The grantor's rights remain unimpaired until they are cut off by sale under sentence of court. Edwards on Bailments, 161. Wolf v. Farrell, 3 Brevard (S. C.)

on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall reconvey the estate to the mortgagor: in this case, the land, which is so put in pledge, is by law, (23) in case of non-payment at the time limited, forever dead and gone from the mortgagor, and the mortgagee's estate in the lands is then no longer conditional, but absolute. (24) But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called tenant in mortgage. (x) But as it was formerly a doubt, (y) whether, by taking such estate in fee, it did not become liable to the wife's dower, and other encumbrances, of the mortgagee, (though that doubt has been long ago overruled by our courts of equity;) (≈)(25) it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on repayment of the mortgage-money: which course has been since pretty generally continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As soon as the estate is created, the mortgagee may immediately enter on the lands; (26) but is liable to be dispossessed, upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment: (27) when, in case of failure, whereby the estate

*68 (1812). I Pingrey on Mortgages, 7 (1893). Schouler on Bailments, 159, 161. I Hilliard on Mortgages, I (4 ed. 1872). 2 Pingrey on R. P. 790.

(23) The student will observe that "by law" is here meant the law as administered in the common-law courts: in equity a different rule prevails.-CHITTY.

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(24) This doctrine, i. e. that a mortgage is an absolute conveyance of title, has been materially softened by the courts of equity since Blackstone's time. This interference by equity courts led to the result that a mortgage came to be one thing at law and quite another thing at equity. Jones on Mortgages, vol. 1, 5 ed. s. 11. Hyams v. Bamberger, 10 Utah, 14 (1895). The mortgagee has certain legal remedies, and the mortgagor certain equitable remedies, which have been mutually recognized by the two courts. In the United States especially, the courts at law have adopted the equitable principles, until now, in some states, a mortgage both at law and in equity is held to be merely a security for the payment of money loaned. Although the courts have steadfastly leaned toward the equitable view of the case, there is still much conflict of opinion as to whether a mortgage is an estate or only a security. In Pennsylvania neither view seems to be well settled. In Tryon v. Munsen, 77 Pa. 250 (1874), Justice Agnew held that a mortgage was an estate." In Wilson v. Shoenburger's Exrs., 31 Pa. 295 (1858), and again in McIntire v. Velt, 153 Pa. 350 (1893), this doctrine is distinctly contradicted, and a mortgage declared to be merely a security. For the practical distinction between these views, see Jones on Mortgages, vol. 1, s. 15 et seq. As to the doctrines held by the different states, those holding to the old common-law view as set forth by Blackstone, that a mortgage actually passes the legal title, are Alabama, Arkansas, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, North Carolina, Ohio, Rhode Island, Tennessee, Vermont, Virginia, and West Virginia. Those holding to the equitable view, that a mortgage is merely a security, are California, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico Territory, New York, North Dakota, Oregon, South Carolina, South Dakota, Texas, Utah, Washington, and Wisconsin. Binn's Justice, Brightly, 10 ed. 78. Byron v. May, 2 Pinney, Wis. 447 (1849.)

(25) When title of the mortgagee becomes absolute by forfeiture of the condition, the wife of the mortgagee is entitled to dower, and the estate is subject to any incumbrance the husband may impose upon it. Pickett v. Buckner, 45 Miss. 242 (1871). Fish v. Fish, I Conn. 562 (1814.)

(26) Chaffe v. Heyner, 31 Louisiana, 612 (1879.)

(27) This agreement made by the mortgagee is undoubtedly binding, and is to receive a liberal construction, as it generally has an operation beneficial to both parties. Flagg v. Flagg, 28 Mass. 477 (1847).

becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead. (28) But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the *159] *estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. (29) And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate; (30) paying to the mortgagee his principal, interest and expenses: for otherwise, in strictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a less sum. (31) This reasonable

(28) Harrison v. Eldridge, 2 N. J. 405, Halstead (1801). (29) Verree v. Verree, 2 Brevard, S. C. Law, 213 (1807).

This period has been fixed at twenty years, according to the view adopted in Virginia, in consequence of the lapse of that time warranting a presumption of an abandonment of the equity. Suavely v. Pickett, 29 Va. 38 (1877).

(30) The policy of the statute of limitations (32 Hen. VIII. c. 2) applies as strongly to mortgaged estate as to any other. So long as the estate can be shown to have been treated as a pledge, so long there is a recognition of the mortgagor's title, (Hodle v. Healey, 1 Ves. & Bea. 540, S. C. 6 Mad. 181. Grubb v. Woodhouse, 2 Freem. 187;) but from the time when all accounts have ceased to be kept by the mortgagee, and provided, also, he has in no other way, either in communications to the mortgagor or in dealings with third parties, (Hansard v. Hardy, 18 Ves. 459. Ord v. Smith, Sel. Ca. in Cha. 10,) admitted the estate to be held as a security only, the statute will begin to run, unless the mortgagor's situation bring him within some of the savings of the statute; and if he do not within twenty years assert his title to redeem, his right will have been forfeited by his own laches. Marquis of Cholmondeley v. Lord Clinton, 2 Jac. & Walk. 180 et seq. Whiting v. White, Coop. 4, S. C. 2 Cox, 300. Barren v. Martin, 19 Ves. 327. But to show that an estate has been treated as one affected by a subsisting mortgage, within twenty years immediately preceding a bill brought for redemption, parol evidence is admissible. Reeks v. Postlethwaite, Coop. 170. Perry v. Marston, cited 2 Cox, 295. Edsell v. Buchanan, 2 Ves. Jr. 84.

In the case of Montgomery v. The Marquis of Bath, (3 Ves. 560,) a decree was made for a foreclosure as to the share of one of several joint mortgagees; but it is to be observed, no opposition was made by the mortgagor in that case, and it is very doubtful whether a decree for a partial foreclosure ought ever to be made. See Cockburn v. Thompson, 16 Ves. 324, n. It is, at all events, certain there can be no foreclosure or redemption unless the whole of the parties entitled to any share of the mortgage-money are before the court, (Lowe v. Morgan, 1 Br. 368. Palmer v. The Earl of Carlisle, I Sim. & Stu. 425,) it being always the object of a court of equity to make a complete decree, embracing the whole subject, and determining (as far as possible) the rights of all the parties interested. Palk v. Clinton, 12 Ves. 58. Cholmondeley v. Clinton, 2 Jac. & Walk. 134. Upon analogous principles, not only the mortgagor, but a subsequent mortgagee, who comes to redeem the mortgage of a prior mortgagee, must offer to redeem it entirely; although the second mortgage may affect only part of the estates comprised in the first, and the titles are different. Palk v. Clinton, 12 Ves. 59. Reynolds v. Lowe, cited from Forrester's MS. in 1 Hovenden's Suppl. to Ves. Jr. 280. It is true that lord Hardwicke (in ex parte King, 1 Atk. 300) intimated a doubt whether it was an established rule of the court that a mortgagor, who has borrowed from the same party money on the security of two estates, shall be compelled to redeem both if he will have back either estate; but it had previously been decided that in such cases, if one of the securities proves to be scanty, the mortgagor shall not be allowed to bring his bill for the redemption of the other mortgage only. Purefoy v. Purefoy, I Vern. 29. Shuttleworth v. Laycock, I Vern. 245. Pope v. Onslow, 2 Vern. 286. And modern cases have confirmed the doctrine that the mortgagee may insist on being redeemed as to both his demands or neither, with this reasonable restriction, however,-that a man who happens to be engaged with another in one mortgage only may redeem the same, though the other person concerned therein has also pledged another estate. Jones v. Smith, 2 Ves. Jr. 376. Cator v. Charlton, and Collett v. Munden, cited 2 Ves. Jr. 377.-CHITTY. Court of equity will not permit a conveyance made to secure a debt to operate for any other purpose. The conveyance will be considered as merely holding the property as pledged, and no agreement in a mortgage will be suffered to make the property irredeemable. Washington Fire Ins. Co. v. Kelly, 32 Maryland, 440 (1870).

(31) Lansing v. Goelet, 9 N. Y. Cowen, 401 (1827).

advantage, allowed to mortgagors, is called the equity of redemption: (32) and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium.(33) But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be forever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall. (34) And also, in some cases of fraudulent mortgages, (a) the fraudulent mortgagor forfeits all equity of redemption whatsoever. (35) It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, (36) and take the land into his own hands in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was, where the possession of the thing pledged remained with the debtor. (b)(37) But by

(a) Stat. 4 & 5 W. and M. c. 16.

(b) Pignoris appellatione eam proprie rem contineri dicimus, quæ simul etiam traditur, creditori. At eam, quæ sine traditione nuda conventione tenetur, proprie hypothecæ appellatione contineri dicimus. [The appel

lation of pledge is properly given to that security which is delivered immediately to the creditor. But that which is bound by a naked compact without delivery we properly call a mortgage.] Inst. l. 4, t. 6, 27.

(32) When the mortgagee has "foreclosed" after the expiration of the time limit, the law considers him so entirely the owner that the purchaser of an equity of redemption has no title in the land before redemption. Brown v. Cram, I N. H. 172 (1817). Leach v. Kimbal, 34 N. H. 568, 573 (1857).

(33) [Living pledge.] Further than this equity itself will not interfere with the legal rights of the mortgagee. Knowles v. Lawton, 18 Ga. 488 (1855). Johnson v. Harman, 19 Iowa, 59 (1865).

(34) Ansonia Bank's Appeal, 58 Conn. 260 (1889).

(35) By the 4 & 5 W. and M. c. 16, if any person mortgages his estate, and does not previously inform the mortgagee, in writing, of a prior mortgage, or of any judgment or encumbrance which he has voluntarily brought upon the estate, the mortgagee shall hold the estate as an absolute purchaser, free from the equity of redemption of the mortgagor.-CHITTY.

(36) The mortgagee is not now obliged to bring an ejectment to recover the rents and profits of the estate; for it has been determined that, where there is a tenant in possession by a lease prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may distrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Moss v. Gallimore, Doug. 279. The mortgagor has no interest in the premises but by the mere indulgence of the mortgagee: he has not even the estate of a tenant at will; for it is held he may be prevented from carrying away the emblements, or the crops which he himself has sown. Ib. 2 Fonblanque on Equity, 258.

If the mortgagor grants a lease after the mortgage, the mortgagee may recover the possession of the premises in an ejectment against the tenant in possession without a previous notice to quit. 3 East, 449. Keech v. Hall, 1 Doug. 21.-CHRISTIAN.

But if the landlord mortgages pending a yearly tenancy, the tenant is entitled to six months' notice from the mortgagee. I T. R. 378.-CHITTY.

(37) It may be shown in equity, by parol evidence, that an absolute deed was intended by the parties merely as a security for money, and therefore a mortgage. Hiester v. Madeira, 3 W. & S. 384. Walton v. Cronly, 14 Wend. 63. Blakemore v. Byrnside, 2 English, 505. And even where the intention of the parties is evidenced neither by written nor oral declarations at the time, wherever the concomitant circumstances show a deed to have been really meant as a pledge only, it will be treated as a mortgage. Hasnet v. Dundas et al., 4 Barr, 178. Wharf v. Howell, 5 Binn. 499. Even if the parties have expressly agreed that it shall not be a mortgage, but an absolute deed, to become wholly so if the money be not paid at the time stipulated, it is nevertheless a mortgage. Rankin v. Mortimere, 7 Watts, 372. If the instrument or transaction be settled to be a mortgage, all restraints upon the equity of redemption are void, as oppressive and against the policy of the law. Johnson v. Gray, 16 S. & R. 361.

statute 7 Geo. II. c. 20, after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to reassign his securities. In Glanvil's time, when the *160] universal method of conveyance was by livery of seisin *or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; "si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet;" (38) for which the reason given is, to prevent subsequent and fraudulent pledges of the same land:(39) cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari."(c)(40) And the frauds which have arisen since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law. (41)

46

(c) L. 10, c. 8.

There may, however, be a sale of land with an agreement that the vendor may re-purchase within a stipulated period of time at a fixed price; and such an arrangement is not a mortgage. In different cases we find different particulars stated as being criteria by which to distinguish whether the instrument be a mortgage or an absolute sale. Each of these may have weight, but it is not safe to designate the insertion or omission of any one clause or circumstance as conclusive; for that would be adopted by the rapacious and submitted to by the needy, and the wholesome rule now established would become useless. The cases, however, seem to admit the possibility of a deed absolute on its face, and a defeasance agreeing to re-convey if the money be paid on a certain day, and that the latter may be unavailing unless the money be paid at the time specified. Among the considerations which weigh are the value of the property, and whether there arises from the transaction a debt for which the grantor would be liable if the land, from failure of title or otherwise, proves worthless. So it seems the agreement to reconvey must be a subsequent and distinct matter, not in the contemplation of the parties when the sale was made and deed delivered. In such case the agreement to reconvey will amount only to an executory agreement. Dates and papers of this kind may be affected if it can be shown that the whole was merely a scheme or contrivance, that in reality it was a loan merely, and that the defeasance was understood and agreed on in the original arrangement, and the discrepancy of dates was merely accidental or with a sinister design. Kerr v. Gilmore, 6 Watts, 405. Kelly v. Thompson, 7 Watts, 401. Colwell v. Woods, 3 Watts, 188. Stower v. Stower, 9 S. & R. 434. Bennock v. Whipple, 3 Fairf. 346. Hillhouse v. Dunning, 7 Conn. 143. Russell v. Southard, 12 How. U. S. 139.SHARSWOOD.

(38) ["If delivery of the pledge itself do not follow, the king's court is not accustomed to take cognizance of private agreements of this kind."]

(39) Wells, Fargo & Co. v. Smith et al., 2 Utah, 45 (1877).

(40) ["Since in such a case the same thing might be pledged to many creditors as well before as afterwards."]

(41) An experiment made in the counties of York and Middlesex, to counteract, by registration, the inconveniences alluded to in the text, is mentioned by our author (at the close of the 20th chapter of this book) as one of very doubtful utility in practice, however plausible in theory.

If a mortgagee neglect to take possession of, or if he part with, the title-deeds of the mortgaged property, with a view to enable the mortgagor to commit frauds upon third persons, he will be postponed to encumbrancers who have been deceived and induced to advance money by his collusion with the mortgagor; but the mere circumstance of not taking or keeping possession of the title-deeds is not of itself a sufficient ground for postponing the first mortgagee, unless there be fraud, concealment, or some such purpose, or concurrence in such purpose, or that gross negligence which amounts to evidence of a fraudulent intention, (Evans v. Bicknell, 6 Ves. 190. Martinez v. Cooper, 2 Russ. 216. Barnett v. Weston, 12 Ves. 133. Bailey v. Fermor, 9 Pr. 267. Peter v. Russell, Gilb. Eq. Rep. 123;) and, of course, a prior encumbrancer, to whose charge on the estate possession of the title-deeds is not a necessary incident cannot be postponed to subsequent encumbrancers because he is not in possession of the title-deeds. Harper v. Faulder, 4 Mad 138. Tourle v. Rand, 2 Br. 652. Among mortgagees, where none of them have the legal estate, the rule in equity is that qui prior est tempore potior est jure, [He who is first in time is first in law;] and the several encumbrances must be paid according to their priority in point of time. Brace v. Duchess of Marlborough, 2 P. Wms. 495. Clarke v. Abbot, Bernard Ch. Rep. 460. Earl of Pomfret v. Lord Windsor,